United States v. Brigance

• Decision Date: 05 July 1979
• Docket Number: Crim. No. B-79-168.
• Citation: 472 F. Supp. 1177
• Parties: UNITED STATES of America v. Thomas Steven BRIGANCE and George Lynn Lankford.
• Court: U.S. District Court — Southern District of Texas

472 F. Supp. 1177

UNITED STATES of America v. Thomas Steven BRIGANCE and George Lynn Lankford.

Crim. No. B-79-168.

United States District Court, S. D. Texas, Brownsville Division.

July 5, 1979.

J. A. "Tony" Canales, U. S. Atty., Houston, Tex., Charles E. Lewis, Asst. U. S. Atty., Brownsville, Tex., and Maria Angela Flores, Asst. U. S. Atty., Houston, Tex., for the Government.

James A. Moore, Houston, Tex., for defendants.

MEMORANDUM AND ORDER

GARZA, Chief Judge.

On March 27, 1979, a two-count indictment was returned against Thomas Steven Brigance¹ and George Lynn Lankford. Count 1 charged that these two Defendants conspired to smuggle eleven psittacine birds into the United States, in violation of 18 U.S.C. §§ 371² and 545³; Count 2 charged them with the actual smuggling of the birds, in violation of 18 U.S.C. §§ 545 and 2.⁴

A jury was selected to try the above-named Defendants on May 21, 1979, and trial commenced on June 6, 1979. On June 12, 1979, the jury found both Defendants guilty as charged on both counts of the indictment, and the Defendants were ordered to appear before this Court on July 6, 1979, for sentencing.

On June 6, 1979, immediately prior to the commencement of the above-mentioned trial, the Defendants filed a Motion To Dismiss Indictment. Although not expressly found in the written motion to dismiss, one of the grounds for dismissal of the indictment orally urged by counsel for the Defendants was the alleged failure of the indictment to comply with the requirements of Rule 7(c)(2) of the Federal Rules of Criminal Procedure. That provision of Rule 7 states that "when an offense charged may result in a criminal forfeiture, the indictment or the information shall allege the extent of the interest or property subject to forfeiture".

At the end of Defendants' trial, following the return of the jury's verdict, the Court established a briefing schedule to permit further argument on the Rule 7 issue. After carefully considering the arguments submitted by counsel and reviewing the applicable law, it is this Court's opinion that the denial of the Defendants' Motion To Dismiss Indictment at the start and during the course of the trial was a correct and proper ruling.⁵

The basic issue that must be decided is whether or not Rule 7(c)(2) of the Federal Rules of Criminal Procedure is applicable to the forfeiture provision of 18 U.S.C. § 545. Based upon a careful and considered review of the wording and legislative histories of 21 U.S.C. § 848⁶ and 18 U.S.C. §§ 545 and 1963,⁷ and upon a reading of the Advisory Committee's Notes with respect to Rule 7, this Court believes and holds that Rule 7(c)(2) is not applicable to indictments brought under 18 U.S.C. § 545.

This Court is well aware that the above holding directly conflicts with the position taken by the 9th Circuit Court of Appeals in the case of United States v. Hall, 521 F.2d 406 (9th Cir. 1975). With all due respect to the distinguished judges of that eminent circuit, the undersigned believes that Hall was incorrectly decided. In that case, the defendant Hall was charged with smuggling two diamond rings into the United States, in violation of 18 U.S.C. § 545. The indictment charging Hall, like the indictment in the instant case, did not allege the extent of the interest or property subject to forfeiture. The trial court apparently ruled that the indictment was defective; however, the trial judge further decided that this defect need not result in dismissal of the indictment if he ruled in advance that the government would be prohibited from invoking the forfeiture provision of § 545. After a trial before the court, Hall was convicted and sentenced to a year's imprisonment. This sentence was suspended, however, upon the condition of Hall's consent to civil forfeiture of the smuggled rings. The appellate panel, in a per curiam opinion expressly based upon the particular circumstances of the case,⁸ vacated the conviction and remanded the case with directions to quash the indictment. The appeals court concluded that the trial court's actions, taken together, deprived Hall of the notice to which he was entitled under Rule 7(c)(2), along with the concomitant opportunity to defend against forfeiture. In reaching this conclusion, the panel held that Rule 7(c)(2) must be applied to the criminal forfeiture penalty of 18 U.S.C. § 545.

It is this Court's opinion that Rule 7(c)(2) is directed at and applicable to only those criminal forfeitures that are part of the punishment for the criminal offense; i. e., those forfeitures that are by statute made a direct and express result of a conviction of the substantive criminal charge. This opinion finds substantial support in the language and the legislative histories of the various criminal statutes mentioning forfeiture, as well as in the advisory notes concerning Rule 7(c)(2).

In 1972, Rule 7 was amended to include the provision at issue in the instant case. The Notes of the Advisory Committee on Rules provide the following insight into the intentions underlying the promulgation and adoption of the new subsection:

Subdivision (c)(2) is new. It is intended to provide procedural implementation of the recently enacted criminal forfeiture provision of the Organized Crime Control Act of 1970, Title IX, § 1963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II, § 408(a)(2).

The Congress viewed the provisions of the Organized Crime Control Act of 1970 as reestablishing a limited common law criminal forfeiture. S.Rep.No.91-617, 91st Cong., 1st Sess., 79-80 (1969). The legislative history of the Comprehensive Drug Abuse Prevention and Control Act of 1970 indicates a congressional purpose to have similar procedures apply to the forfeiture of profits or interests under that act. H.Rep.No.91-1444 (part I), 91st Cong., 2d Sess., 81-85 (1970).

Under the common law, in a criminal forfeiture proceeding the defendant was apparently entitled to notice, trial, and a special jury finding on the factual issues surrounding the declaration of forfeiture which followed his criminal conviction. Subdivision (c)(2) provides for notice. Changes in rules 31 and 32 provide for a special jury finding and for a judgment authorizing the Attorney General to seize the interest or property forfeited.

The above Notes make no reference to the forfeiture procedures existing under the provisions of 18 U.S.C. § 545. In addition, the language of Rule 7(c)(2) is more attuned to the language of 18 U.S.C. § 1963 and 21 U.S.C. § 848, the statutes the new subdivision was meant to help implement in a manner that would assure compliance with concepts of procedural fairness. Furthermore, both of the statutes mentioned in the Advisory Committee's Notes make forfeiture a direct and express part of the punishment for violation of the criminal offenses created by those statutes. On the other hand, the very structure and wording of 18 U.S.C. § 545 stand in stark contrast to the structure and wording of the two statutes mentioned in the Notes.

The legislative history of 18 U.S.C. § 1963 also includes material which tends to support this Court's opinion that fundamental differences exist between the forfeiture provisions Rule 7(c)(2) was designed to help effectuate and the forfeiture provision contained in 18 U.S.C. § 545, differences which make Rule 7(c)(2) inapplicable to indictments charging violations of § 545. For example, a Senate report includes reference to the following Department of Justice comments on the proposed Organized Crime Control Act (18 U.S.C. § 1963):

The concept of forfeiture as a criminal penalty which is embodied in this provision differs from other presently existing forfeiture provisions under Federal statutes where the proceeding is in rem against the property and the thing which is declared unlawful under the statute, or which is used for an unlawful purpose, or in connection with the prohibited property or transaction, is considered the offender, and the forfeiture is no part of the punishment for the criminal offense. Examples of such forfeiture provisions are those contained in the customs, narcotics, and revenue laws.

* * * * * *

Under the criminal forfeiture provision of section 1963, however, the proceeding is in personam against the defendant who is the party to be punished upon conviction of violation of any provision of the section, not only by fine and/or imprisonment, but also by forfeiture of all interest in the enterprise.

Senate Report 91-617, 91st Cong., 1st Sess., 79-80 (1969).

In effect, 18 U.S.C. § 1963 and 21 U.S.C. § 848 reestablished common-law forfeiture. Under these two statutes, forfeiture flows automatically from conviction, with the sentencing judge being able to declare the convicted defendant's interest in certain property or enterprises forfeited as part of the sentence. Rule 7(c)(2) was designed to make sure proper and adequate notice of this fact was given to defendants who would be faced with such direct forfeiture if convicted. The problem of adequate notice does not exist when 18 U.S.C. § 545 is involved, since it contains a forfeiture provision which is in rem in nature, not in personam, and which is not an automatic and direct consequence of conviction. Although the language of § 545 does not expressly so state, the history behind it supports the conclusion that enforcement of that section's forfeiture clause requires separate in rem proceedings. Indeed, the legislative history of § 545 gives clear indication that the forfeiture provision contained therein was deliberately phrased so as to avoid having forfeiture dependent upon conviction. See House Report No. 304, 80th Cong., 1st Sess., A46 (1947).

Finally, in what may be deemed as indirect and prospective support for this Court's holding that Rule 7(c)(2) is not applicable to indictments returned under 18 U.S.C. § 545, the undersigned wishes to refer to the Advisory Committee Note on a proposed change...